from the so-much-for-that dept

As I expected it appears that the Supreme Court has ruled somewhat narrowly in the Bilski case (pdf), which many had hoped would end the scourge of business method and software patents. Instead, the court effectively punted the issue. Technically it affirmed the overall decision from the Federal Circuit that Bilski's specific patent was invalid for being way too broad, but much more importantly for everyone else, it rolled back the Federal Circuit's "machine-or-transformation" test, which many believed effectively ruled out pure software patents. Instead, the court said that the courts "should not read into the patent laws limitations and condi-tions which the legislature has not expressed." In other words, business method and software patents survive.

I'm sure there will be much more analysis of this decision going forward, but on a first pass, despite "affirming" the Federal Circuit ruling, this one looks like a big win for supporters of business method and software patents. Basically, the court just said it would rule on this particular patent and not make any real statements on the overall patentability of business methods or software. So, in effect, it's no real change on how the patent system works.

Update: Many people had expected that Justice Stevens (who is retiring) would write the majority opinion. Instead that was done by Justice Kennedy. Justice Stevens' concurring opinion, however, is a pretty strong rebuke of the reasoning in the majority opinion, even if he agrees with the final outcome. It appears that Stevens does think that business method patents are a problem, but couldn't convince enough members of the court to come out and say it.

Since at least the days of Assyrian merchants, peoplehave devised better and better ways to conduct business. Yet it appears that neither the Patent Clause, nor early patent law, nor the current §101 contemplated or waspublicly understood to mean that such innovations arepatentable. Although it may be difficult to define withprecision what is a patentable "process" under §101, the historical clues converge on one conclusion: A business method is not a "process."

Re: Anyway we can get it

embedding docs

Separate issue, but I'm really of mixed minds when it comes to these embedded flash paper docs. They certainly add depth to the article in question but i think they are not good for archival purposes. On several occasions, I've looked back in the Techdirt archives on a certain topic and it's a pretty safe bet that in 5 years time some of these companies that offer the embedded flash service won't be around. I'd suggest looking at still using flashpaper but hosting the docs locally unless other issues (bandwidth, cost/benefit etc) make that prohibitive. Oddly, I don't feel the same about the occasional YouTube video. That does feel like it's not going anywhere.

The smell of scum lingers on

And so it is. The scum of the earth - the patent trolls, shall continue to prosper off the fruits and labor of the hard-working souls. This smells worse than the oil spill. Is there not a pulse to be found on this court?

Law sucks when you want to break it.

So the courts have ruled, and even then you dont like it, you seem to think that you as a non-steakholder in these issues are right, and everyone else, including the highest courts are wrong !.

Oh well, each to their own, but trying to lump software patent issues with a business patent case backfired bigtime dont you think.

You would have been better off shutting up, and not bringing to the courts attentions things such as the machine transformation clause.

Which you have now lost, so not only did software patents reformers failed in compelling the courts that they are right, they have shown the courts that they are wrong, which is worse.

So as a result you lose the machine transformation, and you see the courts stating quite clearly that they do not think the way you do, and that patents and copyright, and IP laws in general are working !.

"rest of world will do the innovating and share it and you will be left in the UTTER DUST"

yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
But if you can actually INVENT something yourself, not just copy, you would want some protection of your brillant idea.

Or would you rather some big business just take it off you and screw you over.
But you dont have to argue with me, try arguing with the surpreme court... Oh thats right !! you did that, how did that work out for you then .. oh thats right... not so good.

It must really suck when courts actually listen to those to actually create new and innovative things, who actually improve our lot in life, and make it a bit easier, and the same courts disregard those that just want to take that innovative thing and copy it for a quick buck.

Re: Law sucks when you want to break it.

>> "rest of world will do the innovating and share it and you will be left in the UTTER DUST"
>
>yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
>
>

Yup. Just like Henry Ford and Thomas Edison.

That's why there are patents in the first place. They are MEANT to be copied. It's the expectation that people will share interesting ideas in exchange for eventually losing them.

Improving other people's ideas is where "innovation" comes from.

The real problem is the question of whether or not such patents are actually inventive. Patents stifle innovation for the duration of the patent. The damaging potential of patents should not be considered lightly.

Bilski decision doesn't invalidated even one software patent

"Unfortunately, the Supreme Court delivered an opinion that doesn't help the cause of partial or complete abolition of software patents at all."

"[T]he court's majority position is about the most liberal reasoning that it could have been. Only a decision to uphold the Bilski patent could have been any less restrictive.
"Simply put, the Supreme Court's decision does not do away with even one software patent that already exists, nor does it raise the bar for the future."
"The decision announced today makes it clear that a majority of the Supreme Court wanted to give the abolition of even only a small percentage of all software patents the widest berth possible."

"This US decision is even more disappointing when taking into account the global trend." [then mentions political process in New Zealand and court decision in Germany]

"The position that software patents should be abolished isn't nearly as popular among judges and politicians as it is in the free and open source software community."

at the end of the day, the justices got it right. they struck down artificial constructs that did not exist in the law, and pretty much sent everyone back to square 1 on the issue. if the people want to specifically get rid of business process or software patents, they will have to get the congress, house, and president to sign legislation that changes the rules as written. that cannot and should not be done by the courts.

Re: Law sucks when you want to break it.

"So the courts have ruled, and even then you dont like it, you seem to think that you as a non-steakholder in these issues are right, and everyone else, including the highest courts are wrong !."

If its even relevant to whether someone should comment on an issue, why is Mike less of a stakeholder than anyone else? Not only is he a businessman; who, at least partly, relies on software development; but he also tries to facilitate business innovation.

"Oh well, each to their own, but trying to lump software patent issues with a business patent case backfired bigtime dont you think."

Backfired how? It would seem the issue was left unresolved. Back to square one hardly seems like a backfire. Uh, forgive the mixed metaphor. I don't do cars very well.

"Which you have now lost, so not only did software patents reformers failed in compelling the courts that they are right, they have shown the courts that they are wrong, which is worse."

Would it be too much to ask for you to read at least part of the article, instead of just the title and making assumptions from there on?

"yea right, if by innovation you mean copying off what someone else has done, then yes, your right.
But if you can actually INVENT something yourself, not just copy, you would want some protection of your brillant idea."

This whole issue is about people getting patents for innovations, rather than inventions. You seem to be arguing against people that you agree with.

"It must really suck when courts actually listen to those to actually create new and innovative things, who actually improve our lot in life, and make it a bit easier, and the same courts disregard those that just want to take that innovative thing and copy it for a quick buck."

Didn't you just make the distinction between invention and innovation? Now you're saying something that conflicts with what you said barely a paragraph above.

there are some good reasons to like the narrowness of the opinion

I wish the Supreme Court more often would do what common law courts are supposed to do -- decide the case before them without pronouncing broad rules that will constrain lower courts in a wide variety of situations that might be distinguishable in important ways from the case before them, ways that the parties before the court don't care about. In fact, good lawyers know that the broad rules that courts declare are always subject to being exceptions and modifications in later cases that raise facts that implicate issues and interests the earlier case didn't.

So I wouldn't react the way you do, Mike -- that this is a big "win) for business method patents. It's more like a foul ball. It's only a win in that the patents aren't dead for now. In stating that the law doesn't preclude business method patents, the Court isn't saying that there's a business method that's patentable. It's just not ruling out the possibility. And Stevens' concurrence I think will prove to be persuasive when it comes to lower court consideration of more business method patents.

Do you think there are any business method patents that are sufficiently different than the one rejected by the Court that might cause lower courts problems?

Re: Law sucks when you want to break it.

People independently come up with similar ideas. There is nothing special about coming up with an idea all on your own, even if it's something someone else has thought of. It's natural. Patents steal the right for others to implement ideas that they independently came up with.

Re: one more time

Screw Alito

It's really too bad that this didn't come up before O'Connor retired. I can't see her voting to uphold business method patents. As usual, Kennedy makes the wrong choice, though I'm pleasantly surprised about Sotomayor, given that her ex-husband had a vested interest in upholding software patents.

Re:

Bilski and Congress

It didn't seem to me that SCOTUS punted on Bilski but instead handed it off to Congress. SCOTUS reasoned that technological advances had outgrown current Patent legislation by so much that it was time for Congress to step in. Naturally Congress has yet to pass legislation addressing software/process patent issues.

No matter how small, I'm glad that SCOTUS did something - I've not read the decision yet but am guessing that creating precedent was done somewhat reluctantly.

Unfortunately this effectively rewards Congress for not doing what it is supposed to do; I guess SCOTUS hasn't done a lot of child-raising to know that's a bad idea.